TITLE 1 – Agency contracts
This title applies to the agency contract referred to in article I.11, 1 °.
This title does not apply to agreements entered into with commercial agents who do not exercise their activity as intermediary on a regular basis.
The agency contract is entered into for a fixed or indefinite period.
The agency contract is entered into for an indefinite period if it is not put in writing or, if it is put in writing, its duration is not defined.
An agency contract for a fixed period which continues to be performed by both parties after that period has expired shall be deemed to be converted into an agency contract for an indefinite period.
Each party shall be entitled, notwithstanding any clause to the contrary, to receive from the other on request a signed written document setting out the terms of the agency contract, including any terms subsequently agreed.
The commercial agent must look after the principal’s interests and act dutifully and in good faith.
In particular, the commercial agent must:
1 ° make proper efforts to negotiate and, where appropriate, conclude the transactions he is instructed to take care of;
2 ° communicate to the principal all the necessary information available to him;
3 ° comply with reasonable instructions given by the principal.
Unless otherwise stipulated, a commercial agent can, in order to perform his duties, appoint sub-agents paid for by him and acting under his responsibility, of whom he becomes a principal.
In his relations with the commercial agent, the principal must act dutifully and in good faith.
In particular, the principal must:
1 ° provide the commercial agent with the necessary documentation relating to the goods concerned;
2 °obtain for the commercial agent the information necessary for the performance of the agency contract, and in particular notify the commercial agent within a reasonable period once he anticipates that the volume of commercial transactions will be significantly lower than that which the commercial agent could normally have expected.
The principal must, in addition, inform the commercial agent within a reasonable period of his acceptance, refusal, and of any non-execution of a commercial transaction which the commercial agent has procured for the principal.
The remuneration of the commercial agent consists of either a fixed amount, commissions, or partly a fixed amount and partly commissions.
Any part of the remuneration which varies with the number or value of business transactions shall be deemed to be a commission within the meaning of this section.
Articles X.8 to X.14 shall not apply if the commercial agent is not remunerated wholly or in part by commission.
The commercial agent shall be entitled to commission on commercial transactions concluded during the period covered by the agency contract:
1 ° where the transaction has been concluded as a result of his action;
2 ° or, where the transaction is concluded with a third party whom he has previously acquired as a customer for transactions of the same kind;
3 ° or, where it has been agreed that the commercial agent will act alone in a specific geographical area or group of customers and where the transaction has been entered into with a customer belonging to that area or group.
The commercial agent shall be entitled to commission on commercial transactions concluded after the agency contract has terminated:
1° if the transaction is mainly attributable to its efforts during the period covered by the agency contract and if the transaction was entered into within a period of six months after that contract terminated;
2° or if, in accordance with the conditions mentioned in article X.8, the order of the third party reached the principal or the commercial agent before the agency contract terminated.
The commercial agent shall not be entitled to the commission referred to in article X.8, if that commission is payable, pursuant to article X.9, to the previous commercial agent, unless it is equitable because of the circumstances for the commission to be shared between the commercial agents.
The commission shall become due as soon as and to the extent that one of the following circumstances obtains:
1° the principal has executed the agreement; or the principal should, according to his agreement with the third party, have executed his contractual obligations;
2° the third party has executed his contractual obligations.
The commission shall become due at the latest when the third party has executed his part of the agreement or should have done so if the principal had executed his part of the agreement, as he should have.
The commission shall be paid not later than on the last day of the month following the quarter in which it became due.
Agreements to derogate from the second and third section to the detriment of the commercial agent shall not be permitted.
Only in the following cases the parties can agree that the right to commission, as stipulated in articles X.8 and X.9, shall be extinguished:
1 ° if and insofar as it is established that the third party is not fulfilling its obligations, except when the non-execution is caused by circumstances attributable to the principal;
2 ° if the execution has become impossible without this being due to the principal;
3 ° if the execution of the transaction cannot reasonably be required of the principal, especially if, due to the third party, there are serious reasons that justify the principal's non-execution.
In all cases referred to in this article, the commission that the commercial agent has already received shall be reimbursed.
Upon conclusion of the agency contract, the parties freely determine the amount of the commissions.
They can agree upon different amounts depending on the categories of customers visited, the nature of the products distributed or services provided and the role played by the commercial agent in the realization of the transaction.
They are also free to agree upon a special amount for certain exceptionally important or delicate matters.
If the agency contract does not contain any indication as to the amount of the commissions and if no element, derived from the relationship between the parties, makes it possible to know their unspoken will, the amount shall be applied that is customary for transactions of the same nature in the economic sector of the place where the commercial agent carries on his activities. If there is no such customary practice, a commercial agent shall be entitled to a fair percentage, taking into account all aspects of the transaction.
Unless agreed otherwise, the commissions of the commercial agent are calculated on the basis of the price that is invoiced to the customer, without deduction of the additional costs, such as the packaging costs, the freight price, the insurance costs, except if they are invoiced separately, with the exclusion however of taxes, customs fees and other levies.
The loyalty rebates, refunds and discounts that are unilaterally allowed by the principal to the customer can in no case be excluded from the basis on which the commission of the commercial agent is calculated.
Any unilateral modification of the originally agreed amount or the originally agreed amounts during the execution of the agency contract constitutes an act that is equivalent to the termination of the agency contract. However, taking into account the circumstances, the court can decide that the commercial agent tacitly agrees with the thus applied modification if the commercial agent for a relatively long period without reservation accepts commissions calculated on the basis of a reduced percentage.
In the insurance, credit institutions and regulated securities markets, the principal and his agents can, by way of derogation from sections 1 to 7, conclude an agreement in a joint consultative body aimed at modifying the amount of the commissions or their calculation methods. The agreement concluded within the joint consultative body binds all agents and the principal, but the changes that the agreement entails cannot lead to the termination of the agency contract.
After consulting the representative organizations of the sectors concerned, the King can determine the method for establishing, organizing and operating such consultations.
The principal shall supply the commercial agent with a statement of the commissions due, no later than the last day of the month following the quarter in which the commissions has become due.
This statement shall set out the main components used in calculating the amount of commission.
The commercial agent shall be entitled to demand that he be provided with all the information, and in particular an extract from the books, which is available to his principal and which he needs in order to check the amount of the commission due to him.
Agreements to derogate from the first and second section to the detriment of the commercial agent shall not be permitted.
If the remuneration consists entirely or partially of a fixed amount, it will be paid monthly, unless otherwise agreed by the parties.
§ 1. Where the agency contract is concluded for an indefinite period or for a fixed period with the possibility of early termination, either party has the right to terminate it by notice.
The period of notice shall be one month for the first year of the contract. After the first year, the period of notice will be increased by one month for each year started without this period being allowed to exceed six months and without prejudice to the provisions of the third section. The parties may not agree on shorter periods of notice.
If the parties agree on longer periods than those laid down in the second section, the period of notice to be observed by the principal may not be shorter than that to be observed by the commercial agent.
§ 2. The notice of termination shall be given to the other party by delivery of a document indicating the beginning and the duration of the period of notice, with written acknowledgement of receipt by the party to whom it is addressed. Notice of termination can also be given either by registered letter having effect on the third business day after the shipment date, or by a bailiff's writ. Unless otherwise stipulated, the end of the period of notice must coincide with the end of a calendar month.
§ 3. The party that terminates the agency contract without observing the period of notice set out in paragraph 1, second section, or without providing one of the causes set out in article X.17, first section, shall be required to pay to the other party an indemnity in lieu of notice equal to the indemnity which is customary and corresponds either to the duration of the period of notice or to the remaining part of that period.
Where the commercial agent is remunerated wholly or in party by commissions, the indemnity shall be calculated on the basis of the monthly average of the commissions earned during the twelve months preceding the termination of the agency contract or, as the case may be, during the months preceding the termination of the agency contract.
§ 4. By way of derogation from article X.17, first section, in an institution in the insurance, credit institutions and regulated securities markets where a joint consultative body has been established, an agency contract with a commercial agent elected by that body cannot be unilaterally terminated by the principal throughout the entire period of his mandate. The same applies to an agency contract concluded with the legal entity whose manager or managing director has been elected to represent the commercial agents. By way of derogation from the first section, the agency contract can be terminated by the principal if he demonstrates that the termination is based on objective economic criteria applied in the same way to all his commercial agents, inter alia if the agreed business plan is to a large extent not realized and the commercial agent is unable to justify this on the basis of objective facts. If the contract is terminated by the principal without a serious breach by the commercial agent within the meaning of article X.17, first section, or is terminated without proof that the termination is based on the objective economic criteria referred to in the second section, the principal shall owe the commercial agent a special indemnity, the amount of which shall be equal to eighteen months' indemnity calculated in accordance with paragraph 3, without prejudice to the commercial agent's other statutory rights arising from to the termination of the agency contract.
These provisions shall continue to apply during a period of six months from the date of termination of the mandate in the joint consultative body. The mandate ends on the date of the first meeting of the newly elected joint consultative body.
§ 5. Additionally, the agency contract with a commercial agent who is a candidate for the joint consultative body cannot be unilaterally terminated by the principal from the date of candidacy until the first meeting of the newly elected joint consultative body. The same applies to an agency contract concluded with the legal entity whose manager or managing director has applied to represent the commercial agents.
By way of derogation from the previous section, the agency contract can be terminated by the principal with immediate effect because of an exceptional circumstance or serious default of the commercial agent as referred to in article X.17, first section.
If the contract has been terminated by the principal with immediate effect by application of the previous section without there being any exceptional circumstance or serious default of the commercial agent within the meaning of article X.17, first section, the principal shall owe the commercial agent a special indemnity, the amount of which shall be equal to one year's indemnity calculated in accordance with paragraph 3, without prejudice to the commercial agent's other statutory rights arising from the termination of the agency contract.
Either party can, without prejudice to any indemnification, terminate the contract without notice or before the expiry of the term if exceptional circumstances render any professional cooperation between the principal and the commercial agent definitively impossible or if the other party is in serious breach of its obligations. The contract can no longer be terminated without notice or before the expiry of the term if the party relying on it has known the facts for at least seven working days.
Only the exceptional circumstances or the serious breach notified by a bailiff's writ or by a registered letter sent within seven working days after termination can be invoked to justify termination without notice or before the expiry of the term.
Notwithstanding any clause contrary to this, no derogation from this article shall be permissible to the detriment of the commercial agent before the contract is terminated.
After termination of the agency contract, the commercial agent is entitled to an indemnity if he has brought the principal new customers or has significantly increased the volume of business with existing customers and the principal continues to derive substantial benefits from the business with such customers.
If the agency contract contains a restraint of trade clause, the principal shall, in the absence of proof to the contrary, be deemed to derive substantial benefits.
The amount of this indemnity is determined taking into account both the realized increase in the volume of the business and the introduction of customers.
The amount of the indemnity may not exceed an amount equal to one year’s remuneration calculated on the basis of the average annual remuneration over the preceding five years or on the basis of the average remuneration in the previous years if the agency contract has lasted less than five years.
The indemnity shall not be payable:
1° if the principal has terminated the agency contract because of a serious breach attributable to the commercial agent as provided for in article X.17, first section;
2° if the commercial agent has terminated the agency contract, unless such termination is justified by circumstances attributable to the principal, as provided for in article X.17, first section, or on grounds of age, infirmity or illness of the commercial agent in consequence of which he cannot reasonably be required to continue his activities;
3° if the commercial agent or his heirs, with the agreement of the principal, assign their rights and duties under the agency contract to another person.
The commercial agent loses his right to the indemnity if he has not notified the principal within one year after the termination of the agency contract that he intends to assert his rights.
Insofar as the commercial agent is entitled to the indemnity provided for in article X.18 and the amount of this indemnity does not fully compensate the damage actually incurred, the commercial agent, provided he proves the actual extent of the alleged damage, can obtain in addition to this indemnity a compensation equal to the difference between the amount of the damage actually incurred and the amount of that indemnity.
Entitlement to the indemnities referred to in articles X.18 and X.19, shall also arise where the agency contract is terminated as a result of the commercial agent's death.
The parties may not derogate from the provisions of articles X.18, X.19 and X.20 to the detriment of the commercial agent before the agency contract is terminated.
§ 1. The agency contract can contain a restraint of trade clause.
A restraint of trade clause shall be valid only if and to the extent that:
1° it is concluded in writing;
2° it relates to type of transactions with which the commercial agent was entrusted;
3° it is limited to the geographical area or group of customers and the geographical area entrusted to the commercial agent;
4° it is valid for not more than six months after the termination of the contract.
§2 The restraint of trade clause shall have no effect if the agency contract is terminated by the principal without providing for a cause set out in article X.17, first section, or by the commercial agent without providing for a cause set out in article X.17, first section.
§3 The restraint of trade clause creates a presumption in favour of the commercial agent that he has brought the principal new customers; the principal can provide evidence to the contrary.
§ 4 The fixed indemnity provided for in the agency contract in the event of a breach of the restraint of trade clause may not exceed an amount equal to one year's indemnity calculated as provided for in article X.18, section four.
However, the principal can, provided that he proves the existence and extent of his detriment, claim higher compensation.
The commercial agent can only assume liability in writing for third parties’ obligations arising out of transactions which are negotiated or concluded by him.
Unless otherwise agreed in writing, by virtue of a delcredere clause the commercial agent is only liable for the solvency of the third party, to the exclusion of any other failure of the latter to fulfil his contractual obligations. The delcredere clause cannot pertain to a transaction in which the commercial agent was not personally involved. If the principal changes the terms of delivery or payment without the consent of the commercial agent, it ceases to apply.
The commercial agent cannot assume liability for an amount higher than the agreed commission, unless the clause relates to a specific transaction or to transactions that he concludes on behalf of the principal.
By way of derogation from section 3, in the market of credit institutions, a commercial agent whose principal activity consists in transacting business for which he stands surety can incur liability in excess of the commission, however, without exceeding the amount actually owed by the third party to the principal.
If there is an apparent discrepancy between the risk that the commercial agent has assumed and the negotiated commission, the court can reduce the amount for which the commercial agent is liable insofar as such amount exceeds the commission. The court takes into account all circumstances, in particular the way in which the commercial agent has promoted the interests of the principal.
Claims arising from a contract as referred to in art. I.11, 1 °, become time-barred one year after the termination of the contract or five years after the event giving rise to the claim without this period being longer than one year after the end of the contract.
Without prejudice to the application of international treaties concluded by Belgium and notwithstanding provisions to the contrary in the agency contract, any activity of a commercial agent having its principal place of business in Belgium is subject to Belgian law and falls within the jurisdiction of the Belgian courts.